Dudley v. Bureau of Prisons et al

Filing 96

ORDER denying as moot 80 Motion to depose witnesses; granting 83 Motion for Summary Judgment; granting in part and denying in part 83 Motion to Dismiss for Lack of Jurisdiction. Signed by U. S. District Judge Lawrence L. Piersol on 10/25/11. (SLW)

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OCT 2 :; 2011
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA

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SOUTHERN DIVISION

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GENE E. DUDLEY,
Plaintiff,

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vs.
UNITED STATES OF AMERICA,
Defendant.

Civ.09-4024-LLP

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ORDER GRANTll\TG MOTION TO
DISMISS AND MOTION FOR
SUMMARY JUDGMENT

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Plaintiff, Gene. E. Dudley filed the instant action against the United States under the
Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346. Dudley was incarcerated at the Federal
Prison Camp (FPC) in Yankton, South Dakota at the time relevant to this action. Dudley was
injured in an inmate softball game. After granting the United States' previous motion to
dismiss, the only claim that remains is Dudley'S contention that a delay in getting him to the
hospital for medical treatment caused him additional pain and lingering stiffness and
"harmful effects" in his hip joint. Docket 1, ~ lOa. The United States now moves for
summary judgment under Rule 56 of the Federal Rules of Procedure and for dismissal under
Rule 12(b)( 1) of the Federal Rules of Civil Procedure.

FACTUAL BACKGROUND
Dudley filed an administrative tort claim on October 2, 2008, seeking damages in the
amount of $350,000. The claim was denied on December 16, 2008. Dudley then timely filed
this action under the FTCA as codified at 28 U.S.C. § 1346.
At the time relevant to this action, Dudley was housed at the Federal Bureau of
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Prisons Camp at Yankton, South Dakota (FPC Yankton). On May 27,2007, which was a
holiday weekend, Dudley was injured during an inmate softball game when he jumped to
catch a fly ball. Dudley suffered a fracture from the impact of hitting the ground when he
landed wrong. When Dudley did not get up, BOP Recreational Officer Garza went to him,
asked him questions about his condition, and then used a handheld radio to summon the shift
commander, Lieutenant McElroy. Dudley is unsure how long it took Lt. McElroy to arrive at
the softball field. But when she arrived, she asked Dudley questions about his condition. Lt.
McElroy then had inmates ease Dudley into a motorized cart so he could be taken off the
field. Dudley was driven to his housing unit where other inmates placed him in his bunk.
FPC Yankton is a Care Levell institution, which does not require medical personnel
to be present at the institution 24 hours a day. This designation does require the institution to
implement procedures in the event that medical assistance is required after hours. Health
services staff are available on campus at Yankton FPC between the hours of 6 a.m. to 4 p.m.,
Monday through Friday, and 8 a.m. to 4 p.m. on weekends and holidays.
Steve Baker, a physician's assistant, was the medical provider on call on May 27,
2007. Lt. McElroy contacted P.A. Baker about Dudley's injury at 6:35 p.m. According to
BOP records, P.A. Baker returned to the facility to examine Dudley at 8:18 p.m. P.A. Baker
noted that there was no obvious fracture, no leg length discrepancy, and no abnormal
posturing of Dudley's leg. Dudley was in little distress, unless he moved his right leg. P.A.
Banker noted that the injured area around Dudley's hip was tender upon palpation and made
a differential diagnosis of fracture versus strain versus other. After his examination, P.A.
Baker concluded Dudley needed to be transported by ambulance to the local hospital for

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evaluation and treatment.
An ambulance was called at around 9 p.m. and arrived at the facility at about 9:07

p.m. The ambulance crew noted no inward or outward rotation of Dudley's injured leg and
that Dudley complained of pain after being moved but was better after he could relax. The
ambulance arrived at the emergency room at 9:34 p.m. Emergency room staff conducted
various tests to determine whether Dudley had an inflammation of the hip joint lining or if he
had hip disease. X-rays showed that Dudley had a fracture ofthe acetabulum, which required
surgical repair. I The surgery could not be performed at the Yankton hospital, so Dudley was
transported to Avera McKennan Hospital in Sioux Falls, South Dakota. Dudley was
subsequently transferred to St. Mary's Hospital in Rochester, Minnesota, due to the difficulty
of the surgical repair. Following the surgery, Dudley developed progressive heterotopic
ossification in his right hip?
Dudley does not challenge the above facts. He does however, assert that he was
housed in the unit "for over five hours to the best of [his] recollection." Docket 88 at 1.
Dudley also notes that "the record indicate [s] it took the Defendant 6 days to perform
surgery." Id. at 2. Dudley also challenges the United States' assertion that his claim regarding
an overdose of Motrin or ibuprofen is not properly before this court. After reviewing

An acetabular fracture is a fracture ofthe acetabulum, or the "cup-shaped depression on the
external surface ofthe hip bone, with which the head of the femur articulates." Stedman's Medical
Dictionary 11 (26th ed. 1995).
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2 Heterotopic ossification is "the presence of bone in soft tissue where bone normally does
not exist." Dia Shehab, Abdelhaimid H. Elgazzard, & B. David Collier, Heterotopic Ossification,
43 The Journal of Nuclear Medicine 3, 346 (2002), available at
http://jnrn.snrnjoumals.org/contentl43/3/346.full.pdf. "The acquired form ofHO most frequently is
seen with either musculoskeletal trauma, spinal cord injury, or central nervous system injury." Id.

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Dudley's complaint and his deposition, the court concludes that the Motrin claim was not
included in his complaint. Consequently, the claim is not properly before the court and
cannot be considered at this stage in the litigation.

STANDARD OF REVIEW
Jurisdiction is a threshold question that should be decided at the outset of litigation.
Osborn v. United States, 918 F.2d 724, 729 (8th Cir. 1990). "Plaintiffs have the burden of
establishing that jurisdiction exists." Sisseton-Wahpeton Oyate v. Us. Dep '( ofState, 659 F.
Supp. 2d 1071, 1077. Because a 12(b)(I) motion challenges the court's power to hear the
case, "the trial court is free to weigh the evidence and satisfY itself as to its power to hear the
case." Osborn, 918 F.2d at 730. Therefore, the court may consider facts beyond the
allegations of the complaint without converting the 12(b)( 1) motion to a motion for summary
judgment. Id.; Deuser v. Vecera, 139 F .3d 1190, 1192 n.3 (8th Cir. 1998).

SUMMARY JUDGMENT STANDARD
Rule 56(c) ofthe Federal Rules of Civil Procedure provides that summary judgment
"should be rendered if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Only disputes over facts that
might affect the outcome of the case under the governing substantive law will properly
preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Summary judgment is not appropriate if a dispute about a material fact is genuine, that is, if
the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.
The moving party bears the burden of bringing forward sufficient evidence to

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establish that there are no genuine issues of material fact and that the movant is entitled to
judgment as a matter oflaw. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The
nonmoving party is entitled to the benefit of all reasonable inferences to be drawn from the
underlying facts in the record. Vette Co. v. Aetna Cas. & Sur. Co., 612 F.2d 1076, 1077 (8th
Cir. 1980). The nonmoving party may not, however, merely rest upon allegations or denials
in its pleadings, but must set forth specific facts by affidavits or otherwise show that a
genuine issue exists. Forrest v. Kraft Foods, Inc., 285 F.3d 688, 691 (8th Cir. 2002).
Rule 56 of the Federal Rules of Civil Procedure applies to prisoner litigants, despite
the liberal construction afforded to their pro se pleadings. Quam v. Minnehaha Cnty. Jail, 821
F.2d 522 (8th Cir. 1987). The district court is not required to "plumb the record in order to
find a genuine issue of material fact." Barge v. Anheuser Busch, Inc., 87 F.3d 256, 260 (8th
Cir. 1996).
Courts must remain sensitive, however, to the special problems faced by prisoners
attempting to proceed pro se in vindicating their constitutional rights, and the Eighth Circuit
has explicitly disapproved of summary dismissal of prisoner pro se claims without regard for
these special problems. Nickens v. White, 622 F.2d 967, 971 (8th Cir.l980), cert. denied, 449
U.S. 1018 (1980).
DISCUSSION
The FTCA generally waives the sovereign immunity ofthe United States for certain
torts committed by government employees. "Sovereign immunity is a jurisdictional doctrine
and the terms of the United States' consent to be sued in any court define that court's
jurisdiction to entertain the suit." Brown v. United States, 151 F.3d 800,804 (8th Cir.

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1998).The scope of a waiver of sovereign immunity is also a jurisdictional question. ld Thus,
if a claim falls outside the FTCA's limited waiver of sovereign immunity, the claim must be
dismissed under Rule 12(b)(l) for lack ofjurisdiction. See, e.g., Mader v. United States,_
F.3d _ , No. 09-lO25, 2011 WL 3903256 at *7 (8th Cir. Sept. 7,2011) (en banc) (affirming
district court's dismissal of FTC A claim pursuant to Rule 12(b)(1) where claimant did not
satisfY presentment requirement of28 U.S.C. § 2675(a) and sovereign immunity therefore was
not waived).
The FTCA allows suits against the United States for "personal injury or death caused
by the negligent or wrongful act or omission of any employee of the Government while acting
within the scope of his office or employment, under circumstances where the United States, if
a private person, would be liable to the claimant." 28 U.S.C. § 1346(b)(l). This doctrine is
referred to as the "private liability analog." The law of the state where the alleged tort occurred
defines a plaintiffs substantive tort rights under the FTCA.ld.; Goodman v. United States, 2
F3.d 291,292 (8th Cir. 1993). Thus, the substantive law of South Dakota governs this action
because Dudley's tort claim arises out of conduct that happened in South Dakota, namely the
Bureau of Prison's response to Dudley's injury at the Yankton Federal Prison Camp. Under
the FTCA, the federal government is liable to a plaintiff only to the same extent, and in the
same manner, as a private individual would be under the circumstances. United States v.

Olson, 546 U.S. 43,45-46 (2005). The private liability analog affords the government
immunity even where the governmental conduct at issue presents similar, but not identical
circumstances to the type of immunity afforded to a private person under state law; this is
because the federal government can never be exactly like a private actor. Jd at 45.

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II.

BOP Staff, with the Exception of P.A. Baker, Are Entitled to Immunity under
SDCL 20-9-4.1, the South Dakota Good Samaritan Statute.
The United States argues that South Dakota's Good Samaritan statute provides

immunity for the Bureau of Prisons' decision that an ambulance was not immediately needed.
Dudley asserts that the United States has waived this argument because it was not set forth as
a defense in their answer. But Rule 12(b)(1) permits a party to assert the defense oflack of
subject matter jurisdiction by motion, rather than in a responsive pleading. Because a
challenge to analogous private liability is inherently a challenge to the court's jurisdiction, the
United States is permitted to raise this defense via motion. Accordingly, the court will
consider whether the BOP's conduct is shielded by the South Dakota Good Samaritan statute.
The State of South Dakota has granted rescuers immunity for any actions taken during
a rescue when their actions are taken in good faith. The Good Samaritan statute, set forth at
SDCL 20-9-4.1, provides:
No peace officer, conservation officer, member of any fire department, police
department and their first aid, rescue or emergency squad, or any citizen acting as
such as a volunteer, or any other person is liable for any civil damages as a result of
their acts ofcommission or omission arising out ofand in the course oftheir rendering
in good faith, any emergency care and services during an emergency which is in their
judgment indicated and necessary at the time. Such relief from liability for civil
damages shall extend to the operation of any motor vehicle in connection with any
such care or services.
(emphasis added). Under the FTCA, "the application ofthe 'Good Samaritan' doctrine is at
bottom a question of state law." United States v. S.A. Empresa de Viacao Aerea Rio Grandese

(Varig Airlines), 467 U.S. 797, 816 n.12 (1984).3 The South Dakota Supreme Court has

3 Dudley also argues that the BOP employees breached a duty of care owed to him under 18
U.S.C. § § 4013 and 4042 and Bureau ofPrisons' Program Statement 6031, Patient Care. See Docket
1, Complaint, ~ 7 and Docket 89 at 1,5. But these federal statutes and internal policies cannot create
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observed that "[b]y adopting this 'Good Samaritan' statute, the South Dakota Legislature
adopted the public policy of encouraging persons, and as the emphasized language indicates ­
not just professional persons- to act on their instinct when confronted with emergency
situations." Thompson v. Summers, 567 N.W.2d 387,394 n.6 (S.D. 1997). The "purpose of the
statute is to encourage persons to provide emergency care or services without fear of liability."
In re: Certification ofa Question ofLaw, 779 N.W.2d 158, 163 (S.D. 2010). The South
Dakota Supreme Court has held that the statute is so broad as to bar recovery not only by the
person being rescued, but also by a third party. Id. at 161-63. Thus, this statute provides very
broad immunity. Id. at 163.
Dudley claims that an ambulance should have been called immediately. But there is
nothing in the evidence to raise a question of fact as to any negligence on the part ofthe
persons at the scene of the injury at the ballfield. In addition, there is no material issue of fact
as to the potential negligence of any person involved with Dudley before or after he left the
ballfield and until the ambulance arrived. The situation as to Physician's Assistant Baker, will
be subsequently considered. If there was a material issue of fact as to anyone other than
Physician's Assistant Baker, then South Dakota's Good Samaritan immunity would apply to
those persons. If there was evidence of negligence by persons after Dudley was taken to
Physician's Assistant Baker, then those persons would be immune from liability pursuant to

a substantive cause of action under the FTCA unless the conduct at issue is "independently tortious
under applicable state law." Dalrymple v. United States, 460 F.3d 1318, 1327 (11 th Cir. 2006). See
also Klett v. Pim, 965 F.2d 587, 589 (8th Cir. 1992) ("Federally imposed obligations, whether
general or specific, are irrelevant to our inquiry under the FTCA, unless state law imposes a similar
obligation on private persons.") (internal citations omitted). Thus, the BOP has no greater liability
than a private person would have in responding to an injury during a softball game and would have
the same immunity under state law as a private person.

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the Good Samaritan statute, SDCL 20-9-4.1, as their negligence, if there were any, would not
rise to the standard for denying immunity under SDCL 20-9-4.1 (gross negligence or willful or
wanton misconduct). Thus, the United States' motion to dismiss is granted with respect to
Dudley's claims against those persons.
But if there were negligence on the part of Physician's Assistant Baker, then he would
not be entitled to immunity under SDCL 20-9-4.1, the general Good Samaritan statute. The
more specific statute, SDCL 20-9-3, governs the immunity provided to physician's assistants
as well as other medical providers when they render emergency care. SDCL 20-9-3 provides
that:
No physician, surgeon, osteopath, physician assistant, registered nurse, or licensed
practical nurse ... who in good faith renders, in this state, emergency care at the
scene of the emergency, shall be liable for any civil damages as a result of any acts
or omissions by such person rendering the emergency care.
The immunity provided by SDCL 20-9-3 is limited to "emergency care at the scene of the
emergency. " The general immunity statute, SDCL 20-9-4.1, applies immunity more broadly
where it provides immunity for "any emergency care and services during an emergency" with
the immunity not being limited to "emergency care at the scene of the emergency" as
provided in SDCL 20-9-3. SDCL 20-9-3 applies specifically to a variety of medical
practitioners and by its more specific terms precludes the application of SDCL 20-9-4.1, the
general Good Samaritan statute, to a physician's assistant. In this case, Physician's Assistant
Baker was never at the ballfield, the scene of the injury. Instead, he examined Dudley once
Dudley was returned to his housing. Because Physician's Assistant Baker did not treat Dudley
at the scene of his injury, he is not entitled to immunity under SDCL 20-9-3, which applies
specifically to medical providers rendering services at the scene of an emergency. Thus,
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Physician's Assistant Baker is not entitled to immunity under either statute. Accordingly, the
private liability analog of the FTC A does not bar Dudley'S claims against Physician's
Assistant Baker.

II.

The United States is Entitled to Summary Judgment on Dudley's Medical
Treatment Claim Because he Has No Expert Medical Testimony.
Although Physician's Assistant Baker is not entitled to immunity under South Dakota

law, the United States is entitled to summary judgment. Dudley claims that he was left on the
softball field too long, that Physician's Assistant Baker should have returned to the institution
to evaluate him sooner rather than over the phone, and that an ambulance should have been
called immediately upon his injury, rather than after Physician'S Assistant Baker arrived. But
Dudley has failed to establish with competent medical testimony that any of these claims as to
Physician's Assistant Baker, if true, exacerbated or caused him the permanent physical injury
and pain he alleges. As previously discussed, those claims to the extent they apply to persons
other than Physician's Assistant Baker, are barred by the South Dakota Good Samaritan
statute, SDCL 20-9-4.1.
It is well-settled under South Dakota law that the plaintiff in a medical malpractice
case must provide expert testimony to prove the elements of a medical malpractice claim. See
Koeniger v. Eckrich, 422 N.W.2d 600, 601(S.D. 1988); Magbuhat v. Kovarik, 382 N.W.2d 43,

46 (S.D. 1986); Blockv. McVay, 126 N.W.2d 808,811-12 (S.D. 1964), overruled on other
grounds by Shamburger v. Behrens, 380 N.W.2d 659 (S.D. 1986). A plaintiff must produce

expert testimony as to the applicable standard of care, whether the standard of care was
breached, and whether the breach of the standard of care caused his injuries. Koeniger, 422
N.W.2d at 606. Because Physician's Assistant Baker is a medical practitioner, not a layperson,
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his conduct is judged by the standard of care applicable to physician's assistants. There has
been no showing by Dudley of any expert testimony to establish the standard of care for a
physician's assistant, nor has Dudley shown a breach of the standard of care for physician's
assistants by Physician's Assistant Baker. 4 In Goodman v. United States, 2 F.3d 291, 292 (8th
Cir. 1993), the Eighth Circuit Court of Appeals affirmed the dismissal of a medical
malpractice case brought under the FTCA, finding that expert testimony was required as to the
standard of care. After a court trial, the district court entered a judgment in favor of the
defendant because the plaintiff's expert failed to testifY as to what the standard of care was
under the circumstances and facts ofthe case. fd. Dudley's claim is similarly barred by his
failure to produce expert testimony. Accordingly, the United States is entitled to summary
judgment.
CONCLUSION
The South Dakota Good Samaritan statute, SDCL 20-9-4.1 provides immunity to the
BOP staff who responded to Dudley's injury, transported him, and delivered him to
Physician'S Assistant Baker. Accordingly, the private liability analog of the FTCA bars
Dudley'S claims against those staff members. But the general immunity provided by SDCL
20-9-4.1 does not apply to Physician's Assistant Baker, nor is he entitled to immunity under

4 This court's scheduling order, entered on February 4,2011, and amended scheduling order,
entered on May 5, 2011, required Dudley to disclose his expert and expert report by May 10, 2011.
Dudley made no motion to extend that deadline. Dudley's pro se status does not excuse his failure
to comply with the mandatory expert discloses required by Rule 26 of the Federal Rules of Civil
Procedure. See Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir. 1984) (pro se litigants are not excused
from complying with substantive or procedural law); Quam v. Minnehaha Cnty. Jail, 821 F.2d 522
(8th Cir. 1987) (pro se litigants are required to comply with the Federal Rules ofCivil Procedure and
summary judgment may be entered against them).

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SDCL 20-9-3. Thus, Dudley's claims predicated on Physician's Assistant Baker's conduct are
not barred by the private liability analog and the United States' motion to dismiss for lack of
jurisdiction is granted in part and denied in part. The United States is entitled to summary
judgment on Dudley's claims arising from Physician's Assistant Baker's conduct because
Dudley has failed to produce expert medical testimony, which is required under South Dakota
law to prove a medical malpractice claim. Accordingly, it is
ORDERED that the United States' motion to dismiss (Docket 83) is granted in part
and denied in part pursuant to Rule 12(b)(l) of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that the United States' motion for summary judgment
(Docket 83) is granted pursuant to Rule 56 of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that Dudley's motion requesting assistance to depose

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witnesses (Docket 80) is denied as moot.
Dated this

day of October, 2011.
BY THE COURT:

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ATTEST:
JOSEPH HAAS, CLERK

By;J.ImtYi2!

awrence L. Piersol
nited States District Judge

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